Housing and the Equality Act: 10 years on

It has been ten years since the Equality Act 2010 came into force.

It was introduced with the aim of simplifying and standardising anti-discrimination law across the different spheres of activity to which it applied, and across the characteristics to which it afforded protection.

It also urged a more embracing and overarching emphasis on equality than the piecemeal treatment that the predecessor legislation, the Disability Discrimination Act 1995 (DDA), had afforded.

One of the key innovations of the new Act was the concept of ‘discrimination arising from disability’.

This new provision was intended to deal with the effects of the decision in Lewisham LBC v Malcolm [2008] UKHL 43, the first case concerning disability discrimination in housing to reach the House of Lords, and one which adopted a highly restrictive approach to the comparator in disability cases.

Effectively nullifying the protections that disabled people had previously enjoyed under the DDA, the case led to a perception among some discrimination lawyers that housing lawyers had ‘broken’ equality law.

In Malcolm, Lord Bingham commented: “Parliament has enacted that discriminatory acts proscribed by the 1995 Act are unlawful.

"The courts cannot be required to give legal effect to acts proscribed as unlawful. But I would not expect such a defence, in this field, to be made out very often.”

Ten years on and the 2010 Act is now regularly relied on in housing possession cases.

A number of significant cases have now made their way to the appeal court and the Supreme Court.

Of course, the Equality Act does not only protect disabled people and several cases have now considered race discrimination and sex discrimination in housing.

But it is discrimination arising from disability that has made the most important contribution to equality in housing.

When a depressed tenant does not have the energy or will to go out and work or to pay the rent; when a tenant with schizophrenia plays loud music to drown out auditory hallucinations; or when a tenant with a hoarding disorder allows the property to fall into squalor, the Equality Act may provide a defence and enable a tenant who would otherwise be evicted the right to remain in their home.

The key provision is section 35 which makes it unlawful for a landlord to discriminate against, harass or victimise a tenant (or other occupier) by inter alia evicting or taking steps to evict them.

Accordingly, because the court cannot endorse an unlawful act, it is precluded from making a possession order (or perhaps an outright possession order, where a suspended order is available) where the landlord’s pursuit of eviction is unlawful.

What it means to discriminate, harass or victimise is set out in chapter 2 of the Act, but the most frequently encountered of these is section 15.

Importantly (and remedying the problem caused by Malcolm), section 15 does not require a comparator: rather, it is sufficient that a disabled person is treated ‘unfavourably’ (ie by pursuing eviction in this example) “because of something arising in consequence of” disability.

In practical terms, this means identifying the reason why the landlord is seeking possession (for example, rent arrears or antisocial behaviour) and asking whether that reason arose in consequence of an occupier’s disability.

Three main issues have tended to arise in relation to disability discrimination defences.

Is there a disability?

There may be a question as to whether the tenant has a disability for the purposes of the Equality Act at all, particularly where they also suffer from impairments exempted by regulations.

On the one hand, it is not possible to rely on an exempted impairment even if it is the result of a non-exempted disability (eg a tendency to physical abuse arising as a result of autism).

On the other hand, it is possible to rely on a non-exempted disability even if it is the result of an exempted impairment (eg depression caused by alcoholism).

Expert evidence will almost always be necessary; and it will be important for the letter of instruction to provide clear guidance to the expert as to the legal definition of disability.

It will often be helpful to refer the expert to the relevant statutory guidance.

Evicting for ‘something’

More frequently, issues arise as to whether the ‘something’ for which the landlord is seeking to evict arose in consequence of the disability, or whether it was the result of other factors – particularly, one of the exempted impairments.

Again, expert evidence will be needed and the letter of instruction will need to give the expert careful guidance on the law.

Crucially, although the link between the disability and the ‘something’ must be one of causation, the disability does not need to be the sole or even the main cause.

If the tenant can show a prima facie case of discrimination, then it is for the landlord to establish either that it did not know and could not reasonably have been expected to know of the disability, or that the discrimination is justified.

Justification

It is on justification that most cases turn, and from which the Equality Act derives its greatest significance in the context of housing.

In 2015, the Supreme Court confirmed in Akerman Livingstone v Aster Communities Ltd [2015] UKSC 15 that the issue of justification was not a ‘bolt on’ to reasonableness; nor could the landlord rely on any sort of presumption, as it can in the case of proportionality under article 8 of the European Convention on Human Rights.

Rather, the issue of justification must be approached in the structured way derived from European law, asking whether there is a lesser measure that would achieve the legitimate aim (for example, of collecting rent due or protecting other tenants from antisocial behaviour) and, even if there is not, whether eviction is proportionate in all the circumstances.

On assessing justification, a landlord is not entitled to rely on any margin of appreciation or range of reasonable responses, nor is there any Wednesbury threshold.

Rather, the proportionality of the landlord’s decision to seek eviction/possession is determined objectively by the court.

What steps the landlord did or did not consider and what measures they understood to be available is irrelevant.

This shifts attention from the wrongs of the tenant and focuses instead on what can be done to ensure a disabled tenant is supported to remain in their home.

It is no answer to simply say the behaviour is so serious that only eviction will do.

The Court of Appeal’s 2016 decision in Birmingham City Council v Stephenson [2016] EWCA Civ 1029 provided a helpful illustration of the kind of consideration of alternatives required of landlords before the court will accept that eviction is justified; and the dangers of judges trying to determine the issue summarily at a first possession hearing.

It is not about excusing or justifying rent arrears or antisocial behaviour, but about conscientiously working towards solutions to those problems in a way that does not involve the tenant’s eviction.

As the court put it in Stephenson: “Clearly something must be done for the wellbeing of Mr Stephenson’s neighbour.

"However, there may well be intermediate steps that could be taken short of throwing Mr Stephenson out on the street.”

Following the lifting of the six-month stay on possession proceedings in response to covid-19, the importance of section 15 is likely to increase further.

As a result of the pandemic and the associated lockdown, many disabled people will have been pushed into rent arrears (for instance, as a result of inability to work while shielding); and issues of mental health-related antisocial behaviour are likely to have been exacerbated, potentially giving rise to a wave of new claims.

Similarly, in cases where tenants are already subject to a suspended order, the pandemic will arguably represent a change of circumstances to allow issues of proportionality to be considered afresh.

It seems likely that Lord Bingham’s prediction in Malcolm will continue to be proved wrong.
 

Sarah Steinhardt and Daniel Clarke are barristers at Doughty Street Chambers doughtystreet.co.uk